Last Thursday, U.S. District Judge William G. Young denied a motion to dismiss in a lawsuit brought by the Conservation Law Foundation against Wychmere Beach Club alleging that the Cape Code resort polluted waterways. Judge Young stated that the Foundation’s case could hinge on the “hydrologic connection” theory, under which theory the Clean Water Act would apply to the resort’s alleged pollution because the subject pollutants migrate through groundwater and flow directly into a nearby harbor and sound, thereby endangering plants, animals, human health, and the local economy. The resort argues that the CWA only regulates pollutants in “waters of the U.S.,” not in groundwater, and as such the CWA does not apply in this case. Judge Young stated that he denied the dismissal motion in order to obtain more information, and gave the litigants until September to present motions for summary judgment.

The applicability of the CWA to pollution which flows through groundwater is up for review at the U.S. Supreme Court. There is currently a circuit split on the issue, with the Ninth and Fourth Circuits stating that the CWA does apply to such groundwater pollution, and the Sixth Circuit holding that the CWA cannot be used to regulate pollutants which travel through groundwater.